Fuquay v. Atlantic & Western Railroad

CowNOB, J. This action was first tried at July Term, 1930, of tbe Superior Court of Lee County. From tbe judgment at this trial,' dismissing tbe action as of nonsuit, plaintiff appealed to this Court. Tbe appeal was beard at Fall Term, 1930, when tbe judgment was reversed, and .the action remanded to tbe Superior Court for a new trial. Fuquay v. JR. B., 199 N. C., 499. Tbe question presented on said appeal was whether there was error in tbe judgment dismissing tbe action, as of nonsuit, on tbe ground tbat plaintiff was estopped from' maintaining this action, as contended by defendant. We held tbat there was error in dismissing tbe action on tbat ground. Tbe defendant contended tbat even if there was error in dismissing tbe judgment on tbe ground tbat plaintiff' was estopped from maintaining tbe action, this error was not prejudicial for tbe reason tbat tbe evidence offered at tbe trial was not sufficient to sustain tbe allegation of tbe complaint with respect to actionable negligence on tbe part of tbe defendant. At tbe request of tbe defendant, we considered this contention, and held tbat it could not be sustained. For this reason we remanded tbe action for a new trial. Manifestly, if tbe contention bad been sustained, notwithstanding tbe error in tbe judgment dismissing tbe action on tbe ground tbat plaintiff was estopped, we would not have remanded tbe action for a new trial, but would have affirmed tbe judgment of nonsuit. Tbe evidence at tbe trial at January Term, 1931, as appears from tbe record in this appeal, is identical with tbe evidence at tbe trial at July Term, 1930. Tbe only question presented on this appeal from tbe judgment at January Term, 1931, is whether tbe evidence at said *577 trial was sufficient to sustain tbe allegations of tbe complaint witb respect to tbe liability of defendant. Tbe question was answered, at tbe request of tbe defendant, on tbe former appeal, and will not be considered on tbis appeal. Soles v. R. R., 188 N. C., 825, 125 S. E., 24. An examination of tbe evidence, however, seems to sustain tbe action of tbe trial court in refusing to allow defendant’s motion for judgment as of nonsuit. Tbe judgment is affirmed. No error.